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December 28, 2009

Do you remember the Pirate Bay case (TPB)? The website thepiratebay.org was subject to a temporary restraining order (TRO) in relation to a criminal copyright proceeding pending before the Court of Bergamo. The order was successfully challenged by defendant TPB. Following, the prosecutor brought the case before the Italian Supreme Court of Cassation seeking reversal. The Supreme Court shared the prosecutor's position, and vacated the ruling remitting to the lower Court.

The issue with the TRO was mainly concerning the possibility to restrain a website by ordering the ISP not to connect to such identified URL and respective sub-pages. Although such issue of practical and effective restriction of the access to a website is very interesting, I find that another notable part of the ruling concerns the "fumus commissi delicti", AKA the reasonable probability of success on the merits.

The Court anticipated TPB's liability and meanwhile mentioned a couple of interesting things about the standard for contributory infringement and (perhaps?) a new safe harbor.

The Court acknowledged that the primary infringement was undoubtedly conducted by the website-users for being them the authors of the uploading. Yet, TPB is liable because it contributed to the relevant conduct by indexing the torrent files, and by providing a search engine to access such files. Hence, the threshold for contributory infringement lays with these additional activities which constitute sufficient basis to charge TBD as co-conspirator in the infringing conduct ("concorso nel reato").

But the very interesting is that, according to the Court, TPB would be innocent if its conduct was "completely agnostic" (i.e. just unaware...) of the content of the files uploaded by users. Hence, this decision adopts a very severe notion of control with respect to the infringing conduct, being mere knowledge sufficient.

The Court goes forward and surprisingly states that such agnostic situation is present in the social networking sites because in such SNS the indexing and listing of files is performed at a peripheral level, by users. Thus, only the users (uploading files) may be found liable. And this is pretty much where the decision doesn't make sense I get lost...

Anyway, few things seem clear enough: 1) providing a file-sharing tool is O.K. as long as the files are not indexed and/or searchable (so... Google beware!); 2) if torrents, links or other content are "agnostically" stored is still O.K., 3) if you share copyrighted material on a social network you may end up being the only one liable.

Here below in the image is the relevant part of the ruling... in Italian.